Qiang v Cohen

Summary of the Tribunal's decision

1. The effect of the decision of the Tribunal at first instance, as amended on 25 March 2019, was to: 1. Adjourn to a further date, a claim by the Tenant for compensation ($2,700.00), such claim alleging a breach by the Landlord of the Residential Tenancies Act 2010 (NSW) (the "RT Act") in s 52(1) and of the Agreement in clause 18.1, being the Landlord's obligation to provide the Premises in a reasonable state of cleanliness and fit for habitation by the Tenant; 2. Make an "interim order" (order 4) that rent under the Agreement is not to exceed $260.00 per week as from 13 December 2018 to the sooner of: (a) 12 December 2019, or (b) the date that repairs as set out in a work order (at 4(4) below) are completed; 3. Any rent which had been paid in excess of $260.000 per week to be applied as a rent credit in the Tenant's rent ledger; 4. A work order as follows: "At times and dates mutually agreed between the parties but before 19 March 2019, the Landlord is to immediately carry out the following work at the premises: 1. Spray the premises for the eradication and control of cockroaches, spiders and ants, both inside and out and to provide the (Tenant) with a certificate of a qualified person setting out that the spraying has occurred; 2. Repair the bedroom 3 and 5 doors so that they do not become jammed when closed; 3. The Landlord shall cause a licensed locksmith to: 1. Rekey the barrel of the dead lock of the front door (or replace the deadlock) and two keys to be supplied to the (Tenant); the leaver lock on the front door to be adjusted/repaired so that the door does not jam; 2. Rekey the sliding back door lock and ensure that when engaged the lock secures the door; 3. Supply to the Tenant keys to the screen doors at the premises which are fitted with key locks; 1. (c1) The Landlord shall cause a licensed electrician to repair/replace: 1. The ceiling fan in bedroom 4 so that it operates safely; and, 2. The ceiling light fitting in bedroom 2 so that it is securely fastened to the ceiling; 1. An inspection by an appropriately qualified and licensed person to ascertain if there is a safety risk to occupants caused by the previous use of the premises which was stopped by police during 2018 involving the cultivation and storage of cannabis at the Premises, a copy of the report of such inspection will be supplied by the landlord to the tenant; if such a hazard is ascertained, the landlord is to cause such a hazard to be abated by qualified and licensed workmen and provide written proof to the tenant that this has occurred; 2. Carry out repairs to the main bathroom, being to: 1. the floor and otherwise as required so that the floor in the bathroom does not flood and remediate the room so that it does not smell; and, 2. repair the bath tub so that the surface is smooth; 1. Repair/replace the venetian/concertina blinds in the small room off the main bedroom and the lounge room so that they are operational and provide privacy; 2. Repair the window in bedroom 3 so that it fully opens and supports its weight when open and is able to remains open."
2. The work order as set out in the preceding paragraph was made in the context of an earlier (consent) order of 17 January 2019 (order 8), which had stated: "New air-conditioning unit to be installed on or before 30 January 2019; Smoke alarms to be installed on or before 18 January 2019; Shed to be cleared of all items on the 21 January 2019; Remove sharp edges on the drain in the main bathroom on 21 January 2019; Replace grill in the air-conditioning on the outside of the property on or before 31 January 2019; Pest spraying to be completed throughout dwelling on or before 31 January 2019; Yellow paint to be removed from bath on or before 31 January 2019; All windows and doors to be made operative on or before 31 January 2019; Keys to be provided to the tenant for all locks on or before 31 January 2019; Ceiling fans to be checked to ensure they operate safely on or before 31 January 2019; House to be inspected and tested on or before 31 January 2019 to determine if any drug residue is present; Arrange to have Sydney Water check the water meter on or before 24 January 2019; Arrange for a plumber to attend the property to inspect bathroom and to ensure there is appropriate fall to bathroom waste. A report is to be prepared on or before 24 January 2019 and any required remedial work to be carried out on or before 28 February 2019; Ensure all down lights are safe on or before 31 January 2019; Arrange for an electrician to inspect and repair any electrical safety issues on or before 31 January 2019."
3. The Tribunal gave written reasons (under the heading "Brief Reasons") for its orders summarised at paragraphs 4(2) and 4(3) above, as follows: (The orders are) made because of the failure of the Landlord to provide the Premises in a reasonable state of repair and carry out repairs since the start of the Tenancy as requested by the (Tenant) (section 53(1) of the Act). The Tribunal accepts, having regard to order 8 made on 17 January 2019 (by consent) and order 4 set out below, that the state of repair of the Premises is such as to make the weekly rental of $520 excessive, in that the want of repair greatly reduced the amenity and use of the Premises, including the loss of use of the main bathroom since the start of the tenancy.
4. By its orders of 19 February 2019, as amended on 25 March 2019, the Tribunal also: 1. Noted that Sydney Water had not attended to the repair of a leak in one of Sydney Water's pipes, that such leaks were not the Landlord's responsibility and that the Landlord's agent intended to contact Sydney Water regarding the matter; 2. Set aside the work order of 17 January 2019 (from which the Appeal Panel infers the intent was that a work order in terms of paragraph 4(4) above was substituted for the earlier order).
5. The Tribunal gave oral reasons setting out why it made the work order in terms of paragraph 4(4) above.

The Appeal of the Tribunal's Decision

1. By a Notice of Appeal filed 12 March 2019, the Landlord appealed the "interim order" reducing the rent during the term of the Agreement or to completion of the work order as set out in paragraph 4(4) above, whichever is the sooner, by 50% to $260.00 per week.
2. This appeal did not relate to the Tenant's compensation claim for breach of the Landlord's obligation to provide the Premises in a reasonable state of cleanliness. In fact, on 25 March 2019 (subsequent to lodgement of the Notice of Appeal) the Tribunal heard and determined the Tenant's compensation claim by assessing compensation to the Tenant in the amount of $420.00 and ordering the landlord to pay that amount immediately.
3. The Tenant presently remains in possession of the Premises paying the reduced weekly rent.
4. Consistent with its duty to promote resolution processes (NCAT Act, s 37), the Tribunal allowed the parties an opportunity before the hearing of the appeal commenced to conciliate all issues in dispute in respect of the residential tenancy (including early termination of the Agreement), and not just the dispute the subject of this appeal; i.e. the rent reduction order.
5. The parties were unable to resolve their differences, including their dispute about the rent reduction order and the carrying into effect of the work order for repairs. Accordingly, the hearing of the appeal proceeded on the basis of the documents, including written submissions, filed and served. Nevertheless, the Appeal Panel encouraged the parties to continue their settlement discussions on all issues in dispute in respect of the residential tenancy, and to continue to do so regardless of the Tribunal's determination of the specific issue on this appeal which related to the rent reduction order.
6. The Grounds of Appeal as stated by the Landlord in the Notice of Appeal were: The repairing work has never stopped since the tenancy agreement starts. The accusation of (the Landlord) not carrying out required repair is not truthful. Please see the attachment. Nominated real estate agent did not represent (the Landlord's) will on the second hearing while I was in overseas. Agent served a termination of contract after the hearing ended.
7. The attachment to the Notice of Appeal is a written submission of the Landlord. Further documents were provided by the Landlord in accordance with prior directions of the Appeal Panel. As far as could be ascertained from the Landlord's documents (including all of her written submissions) as well as the oral submissions she made at the appeal hearing, the Landlord is seeking leave to appeal the Tribunal's decision in respect of the rent reduction order because she says that the decision was not fair and equitable or was against the weight of the evidence.
8. The Landlord's principal submissions may be summarised as follows: that she had not refused any repair requests of the Tenant; that she had acted promptly by calling out tradespeople and technicians for plumbing, air conditioning and other repair issues; that the Tenant was aware of the age and condition of the Premises at the time she signed the Agreement; that the weekly rental was reasonable and in accordance with the market; and that the Landlord's agent (who appeared for the Landlord on 19 February 2019, while the Landlord was overseas) had not represented the landlord's "will" at the hearing.

Reply to Appeal

1. The Tenant filed a Reply to Appeal which opposes the appeal and submitted that the Tribunal's decision should stand because it was fair and equitable and was not against the weight of the evidence.
2. The Tenant also pointed to the fact that the Notice of Appeal had been lodged out of time. She then argued that the Landlord should not be allowed any extension of time under s 41 of the NCAT Act to lodge the appeal. In this regard, the Tribunal's Reasons for Decision were dated 19 February 2019. The Notice of Appeal referred to the Landlord having received the Reasons on 7 March 2019 (i.e. upon her return from overseas); however, during her oral submissions at the appeal hearing, the Landlord conceded that she had, in fact, received at least a 'soft copy' of the Reasons on or about 22 February 2019, albeit while still overseas. Further, the Landlord's Notice of Appeal, in fact, sought an extension of time to lodge the appeal, referring to this circumstance: that the Landlord had lodged the appeal on the second (business) day after she had returned to Australia.
3. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) provides a 14 day period for the filing of an appeal in respect of proceedings under the RT Act. That period commences from the day on which an appellant is notified of the decision. Given the Landlord's concession during the appeal hearing that she was notified of the Tribunal's decision on or about 22 February 2019, to be within time, the appeal should have been filed by 8 March 2019. That is, the appeal was lodged four (4) days out of time.
4. In the event that the Appeal Panel allowed the Landlord an extension of time to lodge her appeal, the Tenant submitted that the Appeal Panel should proceed to determine the appeal on the basis that there was no error in the Tribunal's decision, that leave to appeal should be refused, and that the appeal be otherwise dismissed.
5. In support of that general submission, the Tenant said that the Tribunal had considered all of the evidence as regards matters for repair of the Premises since the commencement of the tenancy and as regards the Landlord's failure to attend to repairs including the work order made on 17 January 2019, and also that the evidence had been given appropriate weight by the Tribunal in making its decision to reduce the rent by 50% and to order further work and repairs of the Premises. The Tenant pointed to the fact that such evidence had included, in the Tenant's case, photographs, the Tenant's condition report and correspondence with the Landlord's agent, and in the Landlord's case, a letter from the Landlord (provided by the Landlord's agent at the hearing on 19 February 2019 as a written submission) bearing upon compliance with some of the items of work the subject of the earlier order of 17 January 2019 and in respect of non-compliance of other items of work, the Landlord's reasons for non-compliance.

Extension of time

1. In considering an application to extend time under s 41 of the NCAT Act, the relevant discretionary factors include the length of the delay, the reasons for the delay, the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent to the appeal: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
2. In Meisha v Murrell [2017] NSWCATAP 1 the Appeal Panel at [45] set out various matters that the Tribunal had to consider in an application to extend time: 1. the just resolution of proceedings remains the paramount consideration; 2. what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; 3. speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; 4. a party should be afforded a reasonable opportunity to present its case; 5. there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; 6. the nature of the case and its importance to the party seeking an extension of time needs to be considered; 7. reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; 8. an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; 9. there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevents a party from presenting relevant evidence in support of its case.
3. Having considered the competing submissions of the parties as regards extension of time, the Appeal Panel accepts the Landlord's submission as to why the Appeal Panel should extend time, and exercises its discretion to extend the period for the filing of the Notice of Appeal to 12 March 2019. The Appeal Panel took into account that the delay was not lengthy (i.e. 4 days), and also that the Landlord was overseas at the time she became aware of the Tribunal's decision and did not return from overseas until 8 March 2019, whereupon she acted promptly and lodged the Notice of Appeal within two (2) business days of her return.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80 (2) the NCAT Act. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl. 12(1) of sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl. 12(1) of sch. 4 may have been suffered where: "… [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
3. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl. 12(1) of sch. 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Whether there was an error of law

1. The Landlord did not raise an error of law as a ground of appeal in her Notice of Appeal.
2. An absence of procedural fairness in the Member's conduct of the Tribunal hearing could be sufficient to establish an error of law, but the Appeal Panel was satisfied that this was not the case at the Tribunal's hearing on 19 February 2019. The parties accepted that the Landlord was represented at the hearing by her agent, that the agent was given an opportunity to present the Landlord's case (in fact, handing up correspondence from the Landlord which was read as a submission in the Landlord's case), and that the agent was permitted to make submissions in response to the Tenant's rent reduction claim (specifically, as regards the Tenant's submission that rent should be reduced by up to 50%). The fact that the Landlord was dissatisfied with the agent's performance in representing the Landlord's interest at the hearing on 19 February 2019 and in consequence thereof, has terminated their agency agreement is not a matter to be visited upon the Tenant in this appeal. It does not found any basis for a ground of appeal of the Tribunal's decision.
3. However, in argument before the Appeal Panel at the appeal hearing, the Landlord submitted the Tribunal had not "reviewed" her evidence (including the correspondence handed up by the agent) properly, or at all, and that the Tribunal, in light of her evidence, had not identified a legal basis for the order to reduce rent by 50%. The Appeal Panel therefore considered whether these arguments might be characterised as a failure to provide proper reasons for the decision, which is a question of law: see, for example, Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [14].
4. We find that the Tribunal's Reasons for the decision of 19 February 2019 display no error of law.
5. There is no doubt that the Tribunal has authority to provide a remedy to a tenant who alleges rent is excessive having regard to a reduction or withdrawal by a landlord of any goods, services or facilities provided with residential tenancy premises. Such authority is contained in s 44 of the RT Act, which provides, relevantly: (1) The Tribunal may, on the application of a tenant, make any of the following orders: (a) …, (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (2) … . (3) A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) …. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive: (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) An order by the Tribunal specifying a maximum amount of rent: (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.
6. Further, a landlord has an obligation to provide and maintain residential premises in a reasonable state of repair and a tenant has various remedies (including an order for repair) in the event of non-compliance by a landlord with that obligation. Relevantly, s 63 and s 65 of the RT Act provide: 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement. 65 Tenants remedies for repairs (1) Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders: An order that the landlord carry out specified repairs, … Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that: The landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and The landlord failed to act with reasonable diligence to have the repair carried out. … …
7. The Landlord's statutory obligation to provide and maintain the Premises in a reasonable state of repair is also reflected in clause 18.2 of the Agreement.
8. The Appeal Panel is satisfied that having considered the parties' evidence and submissions on 19 February 2019, the Tribunal made a finding which was consistent with the Landlord's obligations under the RT Act and the Agreement; i.e. that the Landlord had failed: "to provide the Premises in a reasonable state of repair and carry out repairs since the start of the Tenancy". (The Appeal Panel reads "s 53(1)" in the Tribunal's Reasons as a typographical error, as there is no doubt that the correct reference to such obligation of the Landlord is in s 63(1) of the RT Act.)
9. Further, the Appeal Panel is satisfied that the Tribunal proceeded to make a finding on the basis of the evidence before it which was consistent with the Tribunal's authority under the RT Act to make a rent reduction order. The Reasons referred to: "want of repair (which) greatly reduced the amenity and use of the Premises, including the loss of the use of the main bathroom, since the start of the tenancy". The Reasons are indicative of the Tribunal's satisfaction that there was "want of repair" of the Premises. To support such conclusion, the Tribunal had relied upon the circumstance that the Landlord had previously agreed to be bound by an extensive work order (order 8) on 17 January 2019, and also its determination upon hearing the evidence and submissions on 19 February 2019, that a further work order (as set out at paragraph 4(4) above) was warranted.
10. In our view, the Reasons given on 19 February 2019 adequately explain how the Tribunal evaluated the evidence before it so that it could make findings as to breach by the Landlord of her obligation to provide and maintain premises in a reasonable state of repair (RT Act, s 63 & s 65 and the Agreement, clause 18.2) and as to the legal basis (RT Act, s 44(1)(b)) that the rent was excessive having regard to a reduction of the facilities at the Premises (referred to in the Reasons as a loss of amenity, particularly the loss of use of the main bathroom).
11. There is also no doubt that the Tribunal may have regard, as it did in this instance by reference to the work order of 17 January 2019 and the further work order as set out in paragraph 4(4) above to the state of repair of the Premises in determining whether the rent is excessive: RT Act, s 44(5)(d).

Whether leave to appeal should be granted

1. The Landlord and the Tenant, respectively, provided to the Appeal Panel and to each other, their documents and submissions for the purposes of this appeal. The documents relied upon in the appeal included documents in both parties' cases which had been before the Tribunal.
2. The Appeal Panel considered all of the parties' documents and submissions. The Landlord's submissions on whether leave to appeal should be granted essentially sought to re-argue the case in the Tribunal or to complain that the Tenant's evidence as regards whether repairs had been carried out at the Premises was preferred to the Landlord's evidence. As indicated, the Appeal Panel treated such general submissions of the Landlord as directed to propositions that the Tribunal's decision was against the weight of evidence or was not fair and equitable.
3. The Appeal Panel did not find any error in the fact finding by the Tribunal. The findings and conclusions were open to the Tribunal Member on the basis of the evidence before him.
4. We are satisfied that the Tribunal's findings on 19 February 2019 were not against the weight of the evidence, nor were they not fair and equitable, in the context of the Tenant's claim for a rent reduction order. We find that the Landlord was not deprived of a significant possibility or a chance which was fairly open: Collins v Urban at [76] - [79].
5. Nothing which has been asserted by the Landlord in this appeal would cause us to conclude that in some way leave to appeal should be granted.

Orders

1. For the foregoing Reasons, the Appeal Panel orders: 1. Leave is granted to extend the time to file the Notice of Appeal to 12 March 2019; 2. Leave to appeal refused; 3. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2019